Challenging Obstacles to Meeting The One Year Filing Deadline for Filing An Asylum Application

Although the immigration statute requires immigrants seeking asylum to file their applications within one year of arriving in the United States, the Department of Homeland Security (DHS) has long failed to notify asylum seekers of this important deadline. Furthermore, DHS and the Executive Office for Immigration Review have not created a mechanism that allows all asylum seekers the opportunity to file their applications in a timely manner.

On June 30, 2016, the American Immigration Council and its partners filed a class action lawsuit challenging these practices on behalf of asylum seekers who enter the United States and are released from immigration custody without notice of the one-year filing deadline. The case was filed by the Council, the Northwest Immigrant Rights Project, Dobrin & Han, PC, and the National Immigration Project of the National Lawyers Guild in the U.S. District Court for the Western District of Washington.

The court granted Plaintiffs’ motion for class certification on January 10, 2017, and on October 30, 2017, Plaintiffs filed a motion for summary judgment.

On March 29, 2018, the District Court granted the motion for summary judgment. The court found that the failure to provide all class members with notice of the one-year asylum application period violates Congressional intent to ensure that asylum is available for those with legitimate claims of asylum. Thus, the failure to provide notice violates the APA and the INA. In addition, the lack of notice – where, among other problems, the information class members were provided was confusing and misleading and where class members are particularly vulnerable - violates the 5th Amendment Due Process Clause. Finally, the lack of an adequate mechanism to timely file their asylum applications violates class members’ statutory right to apply for asylum and the APA.

DHS has appealed the decision to the Ninth Circuit Court of Appeals. During the appeal, pursuant to a joint interim stay agreement, EOIR and USCIS have agreed to treat as timely filed all pending and newly filed asylum applications that are adjudicated during the stay filed by class members who do not have final orders of removal. Class members should provide notice to the adjudicator of their membership in the class.

For more information about the court’s order and the interim stay agreement, please read our Frequently Asked Questions, which includes a copy of the stay agreement and sample notices of class membership.

The immigration courts’ unprecedented backlogs are creating procedural and substantive challenges for attorneys trying to comply with the One-Year Filing Deadline (OYFD) in asylum cases. This Practice Advisory discusses strategies and procedures for complying with the OYFD.

A federal court in Seattle has granted nationwide class action status to a case seeking to protect the rights of thousands of asylum seekers pursuing protection from persecution in their home countries.

A federal district court judge in Washington State ruled today that the federal government’s failure to notify asylum seekers that they must apply for asylum within one year of arriving in the United States violated their right to due process, and ordered the government to provide such notice.